No, Google did not say that there is no privacy in Gmail

Earlier on Tuesday, Google was quoted by Consumer Watchdog, RT.com (Russia Today) and Gizmodo as having argued in a legal motion that customers have “no legitimate expectation of privacy”, but the quote has been taken out of context.

Here’s the passage in question:

“Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use web-based email today cannot be surprised if their emails are processed by the recipient’s [email provider] in the course of delivery. Indeed, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.””

It certainly looks like a damning statement that exposes an apparent disdain on Google’s part for consumer privacy. However, RT reduces the quote marks from double to single, and Gizmodo goes a step further by dropping the close quote, leaving just a stray single quote mark.

So where did the original quote come from? Google’s lawyers are drawing from Smith v. Maryland, a case that decided a telephone company installing a pen register to track dialed numbers did not constitute illegal wiretapping. The legal issue at stake in the court decision was whether the customer had a “legitimate expectation of privacy”.

The case that Google is currently defending itself in is a class action lawsuit arguing that Gmail’s feature for scanning emails to target ads goes against wiretap laws. It’s technically accurate that Google used the quote in its legal defense, but using that fact to claim that Google has completely given up on user privacy is both sensational and disingenuous. The company is, after all, bound to its own privacy policy.

Google’s use of the quote does make me uncomfortable, especially in the current post-Snowden climate, but most of us already had this debate when Gmail first arrived in 2004. Google was open about using email content to serve ads at the time, and most users were happy to make the trade in exchange for the 1GB of storage and faster, better-looking interface.

Google also reminds the court in its motion, which is from July, that all Gmail users have signed the terms of service and have therefore already agreed to have their emails read:

Because the Gmail Plaintiffs are bound to Google’s TOS and/or Privacy Policy, they have expressly consented to the scanning disclosed in these terms.

As Cullen Hoback points out in his documentary “Terms and Conditions May Apply”, we’re all culpable for agreeing to these terms in the first place.

One of the plaintiffs in the class action Gmail suit has argued that since he was a minor when he signed the terms and conditions, those don’t apply to him. That line of reasoning is unlikely to hold water, though, as it threatens to nullify all Terms of Services for minors.

I’m glad the Internet is having an extended conversation about online privacy and digital surveillance, but raising a ruckus over a quote embedded in a lawsuit doesn’t help further the discussion.

While users unhappy with Google’s practice of scanning email can always walk away from the service, the number of secure alternatives has diminished. Earlier this week, encrypted email services Lavabit and Silent Circle both shut down in order to protect users’ data.